Citation Nr: 0722429
Decision Date: 07/24/07 Archive Date: 08/02/07
DOCKET NO. 05-17 010 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder.
REPRESENTATION
Appellant represented by: New York State Division of
Veterans' Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Vella Camilleri, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1966 to
December 1969.
This matter is now before the Board of Veterans' Appeals
(Board) pursuant to a January 2003 rating decision issued by
the New York, New York, Regional Office (RO) of the
Department of Veterans Affairs (VA). Appeal to the Board was
perfected.
FINDINGS OF FACT
1. There is insufficient credible supporting evidence to
corroborate the veteran's claimed in-service stressor of
sexual assault.
2. PTSD is not etiologically related to active military
service.
CONCLUSION OF LAW
The criteria for service connection for PTSD have not been
met. 38 U.S.C.A.
§ 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection is established for a current disability
resulting from injury suffered or disease contracted in the
line of duty, or for aggravation of a preexisting injury
suffered or disease contracted in the line of duty, during
periods of active military service. 38 U.S.C.A. § 1110 (West
2002); 38 C.F.R. § 3.303 (2006).
Service connection for PTSD more specifically requires (1)
medical evidence diagnosing the condition in accordance with
the Diagnostic and Statistical Manual of Mental Disorders,
4th ed., 1994 (DSM-IV), see 38 C.F.R. § 4.125(a) (2006); (2)
a link, established by medical evidence, between current
symptoms and an in-service stressor; and (3) credible
supporting evidence that the claimed in-service stressor
occurred. 38 C.F.R. § 3.304(f) (2006); Cohen v. Brown, 10
Vet. App. 128 (1997). If a PTSD claim is based on a claimed
in-service personal assault, evidence from sources other than
the veteran's service records may corroborate the veteran's
account of the stressor incident. 38 C.F.R. § 3.304(f)
(2006).
The veteran contends that he has PTSD as a result of an in-
service sexual assault that occurred on board the U.S.S.
Mississinewa a few months before his 1969 discharge from
service. He asserts that he was in a food locker getting dry
goods when two men entered, pushed their way in, and
violently pushed him into a wall, closing the door behind
them. The veteran reports that they punched him twice in the
stomach, held him down, covered his head with a bag, and took
turns raping him. They also threatened to cut his throat
with a razor blade or throw him overboard if he told anyone
of the assault. The veteran took a shower after the incident
and then returned to his duty station. He contends that
after the assault, he gained weight, avoided watching movies
with the crew, avoided going off the ship on liberty, and was
unable to act in a military manner. The veteran also reports
that he decided against re-enlisting after this incident,
despite the fact that he had determined to make the military
his career. He asserts that he has suffered from many
emotional problems as a result, to include panic attacks, an
inability to hold down a job, the dissolution of his family,
an inability to travel, trouble getting along with people,
trouble sleeping, sexual problems, and severe financial
problems. See June 2000 VA Form 21-4138; PTSD questionnaire
received January 2003; statements in support of claim
received September 2004 and February 2005; February 2005 and
January 2007 hearing transcripts; May 2005 VA Form 9.
The veteran's service medical records do not provide direct
corroboration for the veteran's claim, as they are devoid of
reference to either a physical or sexual assault. The
service medical records also do not corroborate the veteran's
contention that he gained weight after the assault, as he
weighed 189 pounds at the time of his enlistment and 182
pounds at the time of his discharge. See December 1965 and
October 1969 reports of medical examination. In addition,
the veteran's personnel records do not indirectly corroborate
the claim, as they do not document a change in behavior. The
veteran contends that his performance dropped off without
documentation because he had to do his job or risk getting
into trouble. See January 2007 hearing transcript. The
personnel records reflect otherwise, however, as he was
recommended for reenlistment in December 1969. See
administrative remarks.
There is likewise insufficient post-service corroboration.
The veteran testified that he went to the emergency room at
the VA Medical Center (VAMC) in Northport sometime in 1970
and spoke to a psychiatrist, who told him there was nothing
the VA could do for him and that he needed to get a job. See
January 2007 hearing transcript. The RO attempted to obtain
treatment records from the Northport VAMC between 1969 and
1971, but was informed that there were no treatment records
from this time period. See March 2005 VA Form 10-7131. The
earliest available evidence of post-service treatment is a
record from Dr. C. Frechette dated January 1978, more than a
decade after the veteran's separation from service. The
veteran complained of anxiety, depression, insomnia,
anorexia, and an inability to function at work. Dr.
Frechette noted that the veteran exhibited a depressed mood
and was tense, anxious and agitated; he diagnosed the veteran
with depressive neurosis (300.4) under the International
Statistical Classification of Diseases and Health Related
Problems (ICD or ICDA). He opined that the veteran's
disability was the result of increased pressure at work. See
doctor's statement.
The veteran also indicated that he saw a private
psychologist, Dr. Sachs, for a number of years, but
acknowledged that he never talked about the alleged in-
service assault. In a January 2003 letter, Dr. Sachs
reported that the veteran began seeking treatment in 1978, at
a time when he was on disability from his job at the Long
Island Railroad. The veteran's major problem was the
antagonization he was subjected to by other employees in the
form of constant ridicule and harassment. Dr. Sachs
indicated that the veteran showed signs of depression and
anxiety and eventually lost his job with the railroad,
settling into a series of part time menial positions. Dr.
Sachs reported that during his sessions, the veteran
discussed how much he enjoyed his career in the Navy, but
also discussed the difficulties he had during his last tour
of duty on board the ship, to include being mistreated by
shipmates and being forced to leave the Navy. Dr. Sachs
reported that although the veteran never directly explained
what happened to him on board the ship, he always suspected
it was sexually related since many of the veteran's later
social and job problems revolved around threats to his
masculinity.
The Board acknowledges that the veteran has been diagnosed
with PTSD by several treatment providers at the Northport
VAMC, and that the diagnosis has been linked to the alleged
in-service sexual assault. See e.g., November 2001
psychology general note; February 2002 letter from E.
Callaghan, M.A.; February 2005 nursing note. The records in
this case, however, do not serve as corroboration for the
veteran's claim, as required by 38 C.F.R. § 3.304(f) (2006).
As an initial matter, the medical evidence most closely dated
to the veteran's discharge is devoid of any reference to the
alleged assault. See January 1978 record from Dr. Frechette.
In fact, the veteran acknowledges that he did not talk about
the incident with any of his therapists until he began going
to the Northport VAMC sometime in 2000, and Dr. Sachs
corroborates this statement by reporting that the veteran
failed to directly explain what happened to him on board the
ship despite receiving many years of treatment. See January
2003 letter from Dr. Sachs; January 2007 hearing transcript.
Consequently, although contemporaneous VA records indicate
that the veteran has PTSD as a result of an in-service
assault, in the absence of sufficient corroborating evidence
to prove that assault occurred, the preponderance of the
evidence is against the claim and service connection for PTSD
must be denied.
VA's duties to notify and assist claimants in substantiating
a claim for VA benefits are found at 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005);
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2006);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). In
accordance with 38 C.F.R. § 3.159(b)(1), proper notice must
inform the claimant of any information and evidence not of
record (1) that is necessary to substantiate the claim; (2)
that VA will seek to provide; and (3) that the claimant is
expected to provide. Proper notice must also ask the
claimant to provide any evidence in his or her possession
that pertains to the claim. Notice should be provided to a
claimant before the initial unfavorable decision on a claim.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
Prior to the issuance of the rating decision that is the
subject of the appeal, the veteran was advised of the
necessary evidence to substantiate his claim for service
connection; that the RO would assist him in obtaining
additional information and evidence; and of the
responsibilities on both his part and VA's in developing the
claim. See January 2002 and December 2002 letters. The
veteran was later informed of the need to provide any
evidence or information he might have pertaining to his claim
in a May 2005 statement of the case (SOC). As such, VA
fulfilled its notification duties. Quartuccio, 16 Vet. App.
at 187.
The Board acknowledges that the veteran was not provided
notice of the appropriate disability rating and effective
date of any grant of service connection. There is no
prejudice to the veteran in proceeding with the issuance of a
final decision despite VA's failure to provide such notice,
as his claim for service connection is being denied. See
Dingess v. Nicholson, 19 Vet. App. 473 (2006).
VA also has a duty to assist claimants in obtaining evidence
needed to substantiate a claim. 38 U.S.C.A. § 5103A (West
2002); 38 C.F.R. § 3.159 (2006). This duty has also been
met, as the veteran's service medical and personnel records
were obtained, as were his VA and private treatment records,
to include records associated with the veteran's receipt of
disability benefits from the Social Security Administration.
The record does not suggest the existence of additional,
pertinent evidence that has not been obtained.
For the reasons set forth above, and given the facts of this
case, the Board finds that no further notification or
assistance is necessary, and deciding the appeal at this time
is not prejudicial to the veteran.
ORDER
Service connection for PTSD is denied.
____________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs